America’s adversarial civil procedure won a contested victory over informal and inquisitorial rivals.
Evidence
In general, “law” was bent to suit “equity,” but not all the change was in one direction. The common law courts loved the spoken word—​testimony, cross-​ examination—​all in open court. Equity loved documents, papers, written evidence, and classically tolerated nothing else. But the Judiciary Act of 1789 provided for oral testimony in federal equity cases. Georgia allowed trial by jury in some kinds of lawsuit which, traditionally, belonged on the equity side of the bench. North Carolina, in a statute of 1782, did the same. And a North Carolina law of 1801 provided a simple way to continue equity actions after the death of a party on either side. This replaced the “bill of revivor,” one of the prime procedural culprits, a device so slow and technical that it gave rise to the suspicion that a chancery bill, once begun, would never ever come to an end. But the real reform in equity was to move it more in the direction of the common law: to make it more “adversarial.” This was not a foregone conclusion. American civil procedure won out over its two main rivals: informal modes of procedure and the historical habits of the courts of equity, which were “inquisitorial” and more like continental law. Out of this meeting of the minds of law and equity rose the familiar, adversarial, style of American procedure. — Lawrence M. Friedman, A History of American Law, 814
Categorization
- XREF: Connects to ch1’s theme of law changing by layered accretion — equity reform here shows a genuine fusion rather than accumulation. — connects to: Adversaries can each legitimately claim the same historical victory